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Parental rights in the UK are set to change

At the end of last year we summarised the current statutory rights of parents to family leave in the UK. These are due to change within the next year. The UK Government’s aims are to give parents greater flexibility and choice as to how they take leave on the birth of their child, to remove the traditional view of the mother as the primary carer and to eradicate gender bias in the workplace. Whether they achieve their aims will depend largely on whether parents, and more particularly fathers, take up their new rights.

Current law

Under current law, subject to complying with the statutory notification procedures, all employed mothers/expectant mothers, irrespective of their length of employment, are entitled to a period of 52 weeks statutory maternity leave. 39 weeks of this period of leave are paid, 6 weeks at 90 per cent of salary and 33 weeks at a flat statutory rate. The remainder is unpaid. On the other hand fathers (and the partners of mothers) who have been employed for at least 26 weeks are currently entitled to two weeks statutory ordinary paternity leave to be taken within 8 weeks of the child’s birth. This leave is paid at a flat statutory rate. They are also entitled to an additional 26 weeks leave if the mother has returned to work before the end of her 52-week maternity leave period. This additional period of leave must be taken between 20 weeks and 12 months after the child’s birth.

Future changes – shared parental leave

The UK Government has now confirmed that the new system of shared parental leave will come into force in April 2015.

It is proposed that the “day one” right to maternity leave and pay will remain as the default. However, the mother may choose to end her maternity leave at any time after the end of the compulsory maternity leave period (currently the first two weeks after the child’s birth) and, subject to certain qualifying conditions, the untaken balance of maternity leave and pay may be taken by the mother and/or father/mother’s partner as shared parental leave and pay.

The existing right to two weeks ordinary paternity leave will remain for the exclusive use of the father but additional paternity leave is to be abolished.

Under the new system, apart from the two-week compulsory maternity leave period which the mother must take, the remaining 50-week period of leave can be taken by either parent. As long as no more than 52 weeks leave is taken in total by the parents (whether as maternity or shared parental leave), they may take shared parental leave in a variety of ways and different blocks of time. For example, after the two-week compulsory maternity leave period for the mother (at which time the father could also take his two-week period of ordinary paternity leave), both parents could take a period of leave together, then the mother could take leave for a few more weeks and then the father could take over. As long as the total period of parental leave (whether maternity or shared parental leave) taken by the parents does not exceed 52 weeks and is taken by the cut-off date of 52 weeks from the date of birth, the parents will be free to take the leave as they choose. (This is subject to agreement with their employers – if agreement as to the desired pattern of leave cannot be agreed, the parents have the right to take the leave in one continuous block.)

The total period of paid leave (whether taken as maternity or shared parental leave) will be 39 weeks. Whilst the first 6 weeks of any maternity leave taken will be paid at the rate of 90 per cent of the mother’s salary, any further period of maternity leave or shared parental leave taken will be paid at the flat statutory rate only. It is this aspect of the new system in particular which has led most employers to believe that the take-up of the new shared parental leave system will be low. Whilst most men remain higher earners than women and shared parental leave is paid at the low statutory rate (£138.18 per week from April this year), it is believed that the Government’s aims will not be achieved. We shall have to wait and see whether the majority of employers are correct in their predictions when the new laws come into force next year.